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Legal Battle Between Russian Embassy and Australian Government: The Termination of Lease and Constitutional Challenge

Legal Battle

A legal battle has ensued between the Russian Embassy and the Australian government following the termination of a lease agreement. The original court case in the Federal Court of Australia resulted in the Commonwealth government losing the case. Subsequently, the Australian government passed the Home Affairs Act 2023 (Cth) to terminate the lease. The Russian Federation has now challenged the constitutionality of the Act in a new case.

Termination of Lease

On 17 August 2022 the National Capital Authority (NCA) terminated the lease of the new Russian Embassy at Block 26 Section 44 in Yarralumla. The Government of Russian Federation (GRF) objected to this termination by filing a case in the Federal Court of Australia

The Federal Court Case

In the original court case in the Federal Court of Australia, the Commonwealth government lost against the Government of the Russian Federation (GRF). The court declared that the Notice of Termination of Lease, issued by the Chief Executive of the Second Respondent, was invalid and of no effect. This notice, based on the Australian Capital Territory National Land (Leased) Ordinance 2022 (Cth), sought to terminate the lease agreement between the GRF and the Commonwealth government. The court ordered that the respondents be restrained from re-entering or interfering with the GRF’s quiet enjoyment of the land.

The Home Affairs Act 2023 (Cth)

Refusing to lose the legal battle, and in response to the court’s decision, the Australian government passed the Home Affairs Act 2023 (Cth). This Act terminated the lease and any legal or equitable rights, interests, or obligations arising from the lease. It defined “relevant lease” as any lease owned or held in respect of the land specified in the Act. The Act also addressed compensation for any acquisition of property from a person, stating that the Commonwealth would be liable to pay a reasonable amount of compensation.

The Constitutional Challenge:

Following the enactment of the Home Affairs Act, the GRF continued the legal battle and filed a constitutional challenge against its validity. The GRF argued that the Act lacked constitutional support and contravened section 51(xxxi) of the Constitution, which requires just terms for the acquisition of property. The GRF sought a declaration of constitutional invalidity or, alternatively, a declaration that the Act resulted in an acquisition of property without just terms compensation.

The GRF’s Interim Application:

Alongside the constitutional challenge, the GRF filed an interlocutory application seeking interim relief. It requested that the Commonwealth be restrained from re-entering the land and taking steps to re-lease it. The GRF argued that remaining in possession of the land was necessary to protect the integrity and security of the consular building and the embassy complex. The GRF provided undertakings to ensure the maintenance and responsible use of the land during the legal proceedings.

Consideration and Ongoing Dispute

The court then considered the GRF’s application for interim relief and the constitutional challenge. The Commonwealth government contended that there had been a material change in circumstances since the original court case due to the enactment of the Home Affairs Act. It argued that the GRF had not established a prima facie case or serious question to be tried, and there were no compelling circumstances for an interlocutory injunction to restrain the enforcement of the Act.

In a decision handed down 26 June 2023 the interlocutory application was dismissed by the High Court.

The Legal Battle is not over yet

The legal battle between the Russian Embassy and the Australian government revolves around the termination of a lease agreement and the subsequent passage of the Home Affairs Act. The GRF is challenging the constitutionality of the Act.

Litigation not Child’s play
LAW Litigator
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